(HC) McKenna v. Unknown ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY PATRICK MCKENNA, No. 2:20-cv-01940-TLN-JDP 12 Petitioner, 13 v. ORDER 14 UNKNOWN, 15 Respondent. 16 17 Petitioner Timothy Patrick McKenna (“Petitioner”), a state prisoner proceeding pro se, 18 has filed an Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The matter 19 was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 20 Rule 302. 21 On November 17, 2020, the magistrate judge filed findings and recommendations herein 22 which were served on Petitioner and which contained notice to Petitioner that any objections to 23 the findings and recommendations were to be filed within fourteen days. (ECF No. 9.) Petitioner 24 has not filed any objections to the findings and recommendations. 25 Accordingly, the Court presumes that any findings of fact are correct. See Orand v. 26 United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 27 reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 28 1983); see also 28 U.S.C. § 636(b)(1). 1 Having reviewed the file under the applicable legal standards, the Court finds the Findings 2 and Recommendations to be supported by the record and by the magistrate judge’s analysis. 3 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the Court has 4 considered whether to issue a certificate of appealability. Before Petitioner can appeal this 5 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 6 Where the petition is denied on the merits, a certificate of appealability may issue under 28 7 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 8 constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of 9 appealability indicating which issues satisfy the required showing or must state the reasons why 10 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 11 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 12 jurists of reason would find it debatable whether the district court was correct in its procedural 13 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 14 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 15 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484–85 (2000)). For the reasons set forth in the 16 magistrate judge’s Findings and Recommendations (ECF No. 9), the Court finds that issuance of 17 a certificate of appealability is not warranted in this case. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The Findings and Recommendations filed November 17, 2020 (ECF No. 9), are 20 adopted in full; 21 2. The Petition for Writ of Habeas Corpus (ECF No. 6) is DISMISSED for failure to 22 exhaust; and 23 3. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 24 2253. 25 IT IS SO ORDERED. 26 DATED: January 5, 2021 27 28